"Secure Communities" Program Under Fire

NEW YORK - The National Day Laborer Organization Network (NDLON), the Center for Constitutional Rights (CCR) and the Kathryn O. Greenberg Immigration Justice Clinic of Cardozo Law have filed an injunction in federal court to require the Immigration and Customs Enforcement (ICE) agency to turn over critical documents on the ability for communities to opt-out of the “Secure Communities” (S-Comm) program that enlists local police to become what ICE describes as a “force multiplier” for immigration enforcement.

“Communities across the country are unanimously deciding that keeping residents safe means refusing to participate in the ICE dragnet ‘Secure Communities',” said NDLON Executive Director Pablo Alvarado. “Since the inception of the program, it has been marked by outright dishonesty from ICE. Now is the time for transparency. We are asking the courts to take action to prevent the agency’s misinformation from continuing to trample the democratic process.”

So far, at least, San Francisco and Santa Clara, California, and Arlington, Virginia, have formally requested to opt-out of S-Comm. The emergency injunction is being filed before those municipalities who have voted to opt-out are scheduled to meet with ICE in early November. The lack of information and mixed messages from the agency, however, is causing confusion, leaving local law enforcement frustrated about an issue that groups say is undermining community safety. The injunction specifically seeks to prevent ICE from withholding documents on the “opt-out” policy to allow local communities to have the information necessary to make determination regarding the S-Comm program. The documents requested should have already been turned over Freedom of Information Act (FOIA) law suit filed last April, which ICE has only partially complied with.

“In spite of the widespread confusion about the opt-out process, ICE is moving full speed ahead, deploying S-Comm in cities and counties across the nation, said Bridget Kessler, Clinical Teaching Fellow at the Kathryn O. Greenberg Immigration Justice Clinic of Cardozo Law. “If information about opt-out is released years down the road, it will not do any good for local communities who need to understand the program and make decisions about it now.”

“The government is signing agreements with States without local jurisdictions’ permission. Obtaining records related to the opting out process is essential to maintain an open government process and safeguard local governments’ ability to make decisions that impact their constituents. Especially for places like San Francisco, Santa Clara and Arlington, the public can no longer wait for the records,” said CCR staff attorney Sunita Patel.

Secretary of the Department of Homeland Security (DHS) Janet Napolitano has backed off of earlier claims that local communities are able to opt out of the program. Following the FOIA law suit, ICE issued a seven-page document defending the highly criticized program but describing for the first time an opt-out process for local jurisdictions to be removed from the S-Comm deployment plan. Shortly thereafter, Napolitano confirmed the opt-out option. After the Washington Post broke a story in which a high-level ICE source claimed no such option existed, however, Napolitano said her department “doesn’t consider Secure Communities an opt in/opt out program.”

According to advocates who have reviewed the initial S-Comm documents from the FOIA case, they reveal a pattern of dishonesty. Information about the nascent program has been scarce, and the development of operational details has been shrouded in secrecy. S-Comm, which currently operates in approximately 600 jurisdictions across the country, functions like the controversial 287(g) program and Arizona’s SB1070, making state and local police central to the enforcement of federal immigration law. The program automatically runs fingerprints through immigration databases for all people arrested and targets them for detention and deportation even if their criminal charges are minor, eventually dismissed, or the result of an unlawful arrest.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.